How Does Equity Fulfil the Common Law

How Does Equity Fulfill the Common Law Common Law Equity fulfils the common law, although it does not endeavour to displace it with a moral code. In order to be influential, the law is to be professed as both certain and predictable, and also flexible and fair. Specifically, it needs clear rules on the one hand, but flexibility on the other to produce exceptions to cases that lead to apparently incongruous or unjust conclusions if the rules are applied rigidly. Equity is an essence of principles, doctrines, and rules advanced initially by the Court of Chancery in positive competition with the rules, doctrines and principles of the Common Law Courts. The obliteration of the old Court of Chancery and the Common Law Courts, has led to the proposition that the distinction between law and equity is now outdated; that the two approaches are now ‘fused. On the contrary, the better analysis, is that the common law and equity remain distinct but mutually dependent features of law: ‘they are working in different ways towards the same ends, and it is therefore as wrong to assert the independence of one from the other as it is to assert that there is no difference between them. ’ For a long time, the two structures of common law and equity ran uncomfortably side by side. Until 1615 it was by no means established which one was to prevail in the event of a dispute. Yet, even after that year the inconsistency between the two systems continued for a very long time. After the restructuring of the English court system in 1865, it was decided that in the event of a conflict between the common law and equitable principles, equity must prevail. The Judicature Acts 1873-1975 created one system of courts by amalgamating the common law courts and the courts of equity to form the Supreme Court of Judicature which would administer common law and equity. Accordingly the court ‘is now not a Court of Law or a Court of Equity, it is a Court of Complete Jurisdiction. ’ The area of law recognized as Equity developed in England and Wales in the Middle Ages in situations where the ordinary common law had failed to afford suitable redress. Many legal actions, for example, originated by the issue of a writ but the slightest inaccuracy on the writ would invalidate the entire action. Another inadequacy in the ordinary common law involved the fact that the only remedy was damages; that is, compensation, therefore, the court orders did not exist to require people to do something or to desist from some conduct, for example, sell as piece of land according to an agreement made or stop using a particular title. Dissatisfied litigants frequently preferred to petition the King for him to mediate in a specific case, the courts were, in any case, the King’s courts. These petitions’ for justice were dealt with by the King’s Chancellor who determined each case according to his own discretion. Over the years, the decisions made by Lord Chancellor became known as the rules of equity, derived from the Latin meaning levelling. These new-found rules came to be applied in a special court, the Chancellor’s Court, which became identified as the Court of Chancery. Equity began to appear as an apparent set of principles, rather than a personal jurisdiction of the Chancellor, during the Chancellorship of Lord Nottingham in 1673. By the end of Lord Eldon’s Chancellorship in 1827 equity was recognized as a precise jurisdiction. Nevertheless the development of a parallel but distinct system of dispute resolution was certainly bound to generate a conflict. An individual wronged by a failure of the common law to remedy a gross injustice would apply to the court of equity. The Chancellor, if the case accepted it, would approve of a remedy preventing the common law court from imposing its order. The catharsis transpired in the Earl of Oxford’s Case, where the court of common law ordered the payment of a debt. The debt had previously been paid, but the deed giving affect to the requirement had not been cancelled. The court of equity was prepared to grant an order preventing this and resolving the deed. The collision was in due course resolved in favour of equity; where there is an inconsistency, equity prevails. This rule is now preserved in the Supreme Court Act 1981, s 49. The history of equity is regarded by its constant ebb and flow between compatibility and competition with the common law. More recent developments in equity include, for example, the recognition of restrictive covenants, the expansion of remedies, the development of doctrines such as proprietary estoppel, the enhanced status of contractual licences, and the new model constructive trust. There is an effort, then again, to validate these new developments, which are all illustrations of judicial inspiration, by precedent. As Bagnall J said in Cowcher vCowcher: ‘this does not mean that equity is past childbearing; simply that its progeny must be legitimate- by precedent out of principle. It is well that this should be so; otherwise no lawyer could safely advise on his client’s title and every quarrel would lead to a law-suit. ’ In all probability the single most significant feature of equity is the trust. If title to any property is vested in a person as trustee for another, equity not only restrains the trustee from denying his trust and setting himself up as absolute owner, but impresses on the trustee positive duties of good faith towards the other person. Although one of the original development of equity, the protection granted to equitable owners behind a trust has developed considerably over the last 50 years. Remedies represent some interesting illustrations of the difference between law and equity; a difference which arose as; ‘an accident of history,’ according to Lord Nicholls in A-G v Blake. Ordinarily legal rights and remedies remain separate from equitable ones. Some similarities do, nevertheless, occur. For illustration, an injunction, an equitable remedy, can be sought for an anticipatory breach of contract, or to stop a nuisance, both common law claims. In A-G v Blake, the House of Lords authorized the equitable remedy of account of profits for an assertion for violation of contract where the common law remedy of damages would have been insufficient. The equitable remedy of account of profits is usually accessible where there is a fiduciary relationship but the House of Lords endorsed its request otherwise in exceptional cases where it was the operative way to remedy a wrong. By distinction, in Seager v Copydex, proceedings were brought for breach of confidence in regard for confidential information exposed by the defendants about a carpet grip. Such a claim is equitable and normally the equitable remedies of injunction and account are obtainable. On the other hand, an injunction would have been unsuccessful and he judges awarded damages. It would appear, consequently that a common law remedy is available for an equitable claim for breach of confidence. The new model constructive trust resulted in the main due to the resourceful activity of Lord Denning MR. In Hussey v Palmer, Lord Denning explained the constructive trust as one ‘imposed by the law wherever justice and good conscience require it. Cases such as Eves v Eves, where the woman was awarded an equitable interest in the property signifying her involvement in terms of heavy work, and Cooke v Head, a comparable case, regard this progress further. On the other hand, it might be that this progression has come to a standstill since the retirement of Lord Denning. A number of modern cases, including Lloyds Bank v Rosset, have re-established former ideology in this s phere relating to the survival of a common intention that an equitable interest should occur, and the existence of a direct financial contribution. These ethics are more analogous to those relating to the formation of a resulting trust. The new model constructive trust has been for the most part thriving in the field of licences. At common law, a contractual licence was controlled by the doctrine of privity of contract, and failed to present protection against a third party. Equitable remedies have been made accessible to avoid a licensor violating a contractual licence and to permit a licence to bind third parties. It has been acknowledged that certain licences may produce an equitable proprietary interest by means of a constructive trust or proprietary estoppel. In Binions v Evans, it was decided by Lord Denning that purchasers were compelled by a contractual licence between the former owners and Mrs Evans, an occupant. A constructive trust was imposed in her preference as the purchasers had bought specifically subject to Mrs Evans’ interest and had, for those grounds, paid a reduced price. Also in RE Sharpe, a constructive trust was imposed on a trustee in bankruptcy regarding an interest obtained by an aunt who lent money to her nephew for a house purchase on the arrangement that she could live there for the rest of her life. The volatility of these progressing fields is once more shown in recent case law which seems to hold back from an advancement which may have pushed the boundaries too far. Obiter dicta from the Court of Appeal in Ashburn Anstalt v W JArnold & Co, accepted in Habermann v Koehler, propose that a licence will only give effect to a constructive trust where the conscience of a third party is influenced: it will be imposed where their behaviour so deserves. Judicial resourcefulness in equitable disciplines is therefore made subject to refinements by judges in later cases. Proprietary estoppel is an additional illustration of an equitable doctrine which has seen momentous progression in the interest in justice ever since its formation in the leading case of Dillwyn v Llewelyn. The dogma is established on encouragement and acquiescence whereby equity was equipped to arbitrate and adjust the rights of the parties. Its relevance has been further improved by the Court of Appeal in Gillet vHolt, where a wider line of attack to the doctrine was taken that depended, eventually, on the unconscionability of the act. Once more, it is an advancement which is outside of the organization of property rights and their registration recognized by Parliament. Cases such as Jennings v Rice show that the principle of proprietary estoppel and the protection of licences by estoppel continue to be a successful means used by the judges for the protection of licences and equitable rights. The extent to which the right welcomes protection is adaptable owing to the conditions of the particular case. For example, in Matharu v Matharu, the licence did not bestow a beneficial interest but presented to the respondent a right to live in the house for the rest of her life. A different prevailing progression in equity has resulted from the decision of the House of Lords in Barclays Bank plc v O’Brien. The case has proclaimed the re-emergence in a broad sense of the equitable doctrine of notice. They present that, where there is undue influence over a co-mortgagor or surety, this may provide augmentation to a right to prevent the transaction. This right to avoid the transaction amounts to an equity of which the mortgagee may be considered to have constructive notice. This revivification of the equitable doctrine of notice in a contemporary situation reveals evidently the flexibility of equity. A number of cases pursued this pronouncement. In Royal Bank of Scotland v Etridge, the House of Lords laid down common procedures for the application of the doctrine of notice in this situation. In summary equity fulfils the common law, although it does not endeavour to displace it with a moral code. There have been setbacks and refinements, over the last 50 years, in the progress of new doctrines relating to the trust.

Computer Literacy Essay

Introduction: †¢ How many people in this classroom learn to use computer? As I look around, no one in this classroom, don’t use computer in their offices. †¢ We are all students of AIC, and most likely gone to different basic computer course. †¢ Does studying computer affect the way we communicate? And if so, is this a bad thing? Development †¢ As our society, increasingly dependent on computers to take care of our daily needs, it creates a high demand for skilled professionals to maintain as well as take advantage of this technology. o Pose-Pause-Pounce-Praise †¢ Questions 1. Why do we need to study the use of computer? 2. What is the personal cost as â€Å"studying a computer† becomes a necessity? (requirement, obligation, essential) †¢ We have to go in training †¢ Read & Practice †¢ Tutorial 3. When is the last time you use a computer? †¢ 4. What will you do, if you don’t know how to use computer in case of presentation or research? †¢ Library, other resources 5. Amplify †¢ I’m referring to computer literacy. As computer literacy becomes a necessity, we are faced with the facts that we are in a ever-changing society that demands the use of technology †¢ We will keep putting aside the cost of this literacy as long as we only see the positive aspects of a technology-centered future. KEYPOINT 2: IMPORTANCE OF COMPUTER †¢ Questions 1. What is the significance of having a computer in our work? 2. When is the last time that your office procures or upgrades your computer because of increasing demands from your clients? 3. What applications do use in your computer? 4. What will happen if we still use typewriters to share information? 5. Amplify †¢ Information and communication are the two most important strategic issues for the success of every organization. Computers help us to solve this issues.

Analysis Study Of Colonial Discourse In Literature

Analysis Study Of Colonial Discourse In Literature Colonial discourse has been defined by many writers such as Diniz (1996:126) who points out hat â€Å"Colonial discourse usually refers to the writing which runs from five hundred years, through the days of European mercantile expansion, to our own time (1996:126). This definition suggests that the era of Colonialism in literature began in the 17th C. with the publication of Shakespeare’s The Tempest (1611-12). In this paper, however, the term is used to refer to the literature written in English, but confined to the century of British Colonialism and the decades of anti- or post colonial activity which followed. Said’s Orientalism (1978) uses the concept of colonial discourse to re-order the study of colonialism. So it can be said to inaugurate a new kind of study of colonialism. Said’s Orientalism examines how the East, including the Middle East, is represented in the history and the literature written by the West. The West always looks at the East as inferio r people without religion or morals. Said’s projecttries to show how knowledge about the non-Europeans was part of the process of maintaining power over them. In short, Orientalism is primarily concerned with how the Orient was constructed by Western Literature and not with how such construction was received by colonial subjects. It examines the Western attitudes toward the East. Said concludes that the Western writers depict the Orient as â€Å"irrational,† â€Å"week† and â€Å"feminised other†. This depiction can be contrasted with the depiction of the West as â€Å"rational†, â€Å"strong† and â€Å"masculine†. Said’s Culture and Imperialism (1994) Colonial discourse is a concept popularized by Edward Said. In this paper, it refers also to the knowledge of Africa constructed by the West (colonial writers: as Defoe and Conrad) to bolster its colonizing interests, and the reaction of the East (colonized writers as: Achebe). C olonial discourse has not been the product of a certain age and it has attracted the attention of several writers and critics. Those celebrated authors as Conrad and Defoe created remarkable works out of the subject of Colonialism. Nowadays, Colonial discourse is one of the most current issues in literary criticism. 1.2. Life and Works of Defoe, Conrad and Achebe 1.2.1. Life and Works of Defoe: Danial Defoe was born about 1660 in London. His father, James Foe, was poor but hard working butcher. Defoe was not able to attend traditional institutions like Oxford and Cambridge because of his father’s opposition. Defoe is often considered the father of English novel. He is a master of simple prose and powerful narrative with a love of realistic detail. He is a great imaginative writer who creates one of the most familiar resonant myths of modern literature. He is influenced by the writings of Addison, Steel and Swift. Defoe’s important works are: Robinson Crusoe (1719), Mol l Flanders (1722), Capitan Singleton (1720) and The History of Peter the Great and Colonel Jack (1722). Defoe died in London on April 24, 1731. 1.2.2. Life and Works of Conrad Joseph Conrad was born in December 3, 1857. His childhood was affected by his homeland’s struggle for independence. He is a Polish novelist and short story writer. Conrad is one of the English language’s greatest stylists. He becomes one of the greatest writers in the world. His major works include Heart of Darkness (1902), Lord Jim (1900), The Secret Agent (1907), Under the Western Eyes (1911) and Nostrome (1904). He died of heart failure on August 3, 1924.

Home Schooling Essay Example | Topics and Well Written Essays - 1000 words

Home Schooling - Essay Example Looking at the nature of homeschooling it can be noticed that it seriously needs regulation. The regulation comes with challenges. The regulation of homeschooling has over the years had various critics criticizing its necessity. As much as there are various points that successfully explain the lack of necessity for homeschooling, there are arguments with bigger intensity explaining the need for regulating homeschooling. The arguments mainly proves the necessity of regulation of homeschooling to ensure its productivity. Discussion One reason why home schooling should be regulated is because of the high rate at which its rising and the high possibility of it being abused. Some parents might take advantage of homeschooling to serve their own interests. This is a possibility in cases where parents are trying to hide some aspects of their current or past lives. For instance, violent parents might take advantage of homeschooling to hide the inhuman things that they do to their children. Th is way they will be able to hide the bruises that result from the mistreatment that they subject their children to. This will create a scenario where the children will be having their basic rights violated, but no one will come to their rescue because no one knows. This can also be used by parents with criminal records to serve their own interest (Kunzman, 2009). However, it is clearly evident that this can have very minimal effect on the overall effectiveness of the productivity of homeschooling. Homeschooling should also be regulated because of the quality of education that all individuals are entitled to. Researches have it that, without proper regulation, the quality of education given to homeschooling students can easily be compromised. As much as there is always a fixed curriculum to be followed by both homeschool and public school teachers, it is hard to tell whether the homeschool teachers effectively cover the curriculum. This will mean that, in the end, the students would not have attained the intellectual maturity that is expected of a student that has gone through the United States of America’s education system (McMullen, 2002). The ultimate result of this sub quality education is that the students will not be able to keep up with the students going through the standard type of education both at higher levels of education and in various professions. Students who have gone through homeschooling through their high school years are less expected to major in the natural sciences than the non-homeschooled students, and that more attention has to go to this because of the growing number of homeschooled students in the United States of America. Homeschooled students are not exposed to professional science teachers and labs and so do not have as many options, with their growing number this could be a threat the education system (Phillips, 2010). This will definitely call for regulation because the increase in the number of people being homeschooled will, therefore, mean that there is a significant decrease in the number of professionals in natural science, a factor that might affect the country economically, politically and socially. Taking a look at the motives that parents usually have when

How do theories of leadership provide practical advice on how to be an Essay - 1

How do theories of leadership provide practical advice on how to be an effective leader Discuss, with reference to at least two theories or models of leadership - Essay Example With these transformations, various leadership theories and models have been applied or used. Researchers and experts do not unanimously agree on a solitary leadership style that should be implemented in organizations to achieve success. Rather, they have argued that using or combining different theories based on the wants and needs of an organization will give out the best results. This paper will depict how leadership theories and models provide practical advice on how to be an effective leader. Moreover, transformational leadership theory and path goal theory will be incorporated in the essay. Philosophers and Researchers have studied or engaged in lengthy discussions about the nature of leadership. However, no conclusive facts and evidence exist as to what makes effective leadership (Judge, T. 2004, 36). The different perspectives advocated by researchers on leadership have led to examination of various variables. For example, characters of good leaders, the use of power, leadership models and theories, and the various leadership styles (Gillespie, N. 2004, 600). Historically, leadership definitions majorly focussed on the behaviours of leaders (Yukl, G. 2002, 56). For example, the conduct, values and behaviours of popular ancient Greek and Roman leaders were described in Plutarch’s Parallel Lives. The behaviours of these leaders were used as part of leadership training to subsequent leaders. Machiavelli provided Lorenzo de Medici in the early 16th century with a detailed prescription on how to become an effective leader in his book the prince. Lorenzo de Medici w as a leader in an Italian state/city. James Macgregor examined the leader follower relationship in his book leadership (1978) during the 20th century. The main goal of a transformational leader is to â€Å"transform† an organization or people (Nell, E. 2005, 98). The leader changes their heart, mind, insight, understanding and vision.

Issus on Populr Journlism Essay Example | Topics and Well Written Essays - 4000 words

Issus on Populr Journlism - Essay Example In rÐ µcÐ µnt timÐ µs Ð ° numbÐ µr of issuÐ µs Ð °nd notions hÐ °vÐ µ Ð °ppÐ µÃ °rÐ µd in thÐ µ fiÐ µld of journÐ °lism Ð °s its dÐ µvÐ µlopmÐ µnt hÐ °vÐ µ broÐ °dÐ µn Ð °nd gÐ °inÐ µd morÐ µ Ð °rÐ µÃ °s to discovÐ µr. OnÐ µ of such issuÐ µs rÐ µfÐ µrs to tÐ °bloidisÐ °tion which is Ð ° tÐ µrm frÐ µquÐ µntly usÐ µd in journÐ °lism Ð µnvironmÐ µnt. JournÐ °lists, mÐ µdiÐ ° critics Ð °nd Ð °cÐ °dÐ µmics Ð °pply this tÐ µrm to chÐ °rÐ °ctÐ µrizÐ µ rÐ µcÐ µnt trÐ µsnds in thÐ µ mÐ °ss mÐ µdiÐ °. Ð ° shift to nÐ µw Ð °nd morÐ µ Ð µntÐ µrtÐ °ining kinds of journÐ °listic contÐ µnt with thÐ µ dominÐ °ncÐ µ of visuÐ °l prioritiÐ µs ovÐ µr thÐ µ vÐ µrbÐ °l tÐ µstifiÐ µs thÐ µ involvÐ µmÐ µnt of tÐ °bloidisÐ °tion. ThÐ µ shift in thÐ µ kind of lÐ °nguÐ °gÐ µ usÐ µd, Ð °nd thÐ µ strÐ µss upon thÐ µ sÐ µnsÐ °tionÐ °l Ð °nd thÐ µ Ð µmotivÐ µ, Ð °nd thÐ µ incrÐ µÃ °sing dominÐ °tion of visuÐ °lly dÐ µtÐ µrminÐ µd discoursÐ µ, undÐ µrminÐ µ thÐ µ plÐ °cÐ µ of rÐ µÃ °son. Ð °t thÐ µir most Ð µxtrÐ µmÐ µ, critics of tÐ °bloidisÐ °tion sÐ µÃ µ it Ð °s onÐ µ mÐ °jor Ð µlÐ µmÐ µnt provoking Ð ° crisis of public lifÐ µ thÐ °t is Ð µroding thÐ µ bÐ °sis of dÐ µmocrÐ °cy. On thÐ µ othÐ µr hÐ °nd, thÐ µrÐ µ Ð °rÐ µ thosÐ µ who Ð °rguÐ µ thÐ °t thÐ µrÐ µ is littlÐ µ or no Ð µvidÐ µncÐ µ for growing tÐ °bloidisÐ °tion, Ð °nd thÐ °t thÐ µ trÐ °ditionÐ °l functions of thÐ µ mÐ °ss mÐ µdiÐ ° continuÐ µ to bÐ µ dischÐ °rgÐ µd Ð °t lÐ µÃ °st Ð °s wÐ µll Ð °s thÐ µy hÐ °vÐ µ bÐ µÃ µn in thÐ µ pÐ °st. OthÐ µrs wÐ µlcomÐ µ thÐ µ sprÐ µÃ °d of tÐ °bloidisÐ °tion, which thÐ µy sÐ µÃ µ Ð °s broÐ °dÐ µning Ð °nd dÐ µmocrÐ °tizing thÐ µ contÐ µnt of thÐ µ mÐ °ss mÐ µdiÐ °. ThÐ µ old wÐ °ys of thÐ µ mÐ µdiÐ ° wÐ µrÐ µ thÐ µ prÐ µsÐ µrvÐ µ of Ð °n Ð µlitÐ µ minority.

Forces in International Business Research Paper

Forces in International Business - Research Paper Example The business environment is indeed inundated with waves of issues that totally define the nature of operations. This mix translates to what is referred to as the business environment. The forces that define the business environment normally range in various aspects as can be realized in the modern age. Some of these factors can be controlled by the business whereas others are beyond the manipulation of the business. These factors are the core subject matter in this essay. It seeks to address how the external environmental forces influence operations. FORCES IN INTERNATIONAL BUSINESS Introduction The modern business environment is defined by myriad factors that vitally influence the operations of all players in market. ... In most cases, some of these factors affect the organizations directly while others impact indirectly on the organizations. In that manner, the modern business environment is classified into; internal environment, operational environment and external environment. The first two classifications are normally a function of the organization’s own operations and can therefore be influenced whereas the external environmental factors are broad in scope and cannot easily be manipulated by the operations. Economic environment The economic business environment usually refers to the combination of the nature of economic system prevailing in the country of operations, the anatomical structure of the economy in terms of economic policies, the government’s regulation of the capital markets and such other factors as the socio-economic infrastructure. Such market situations are normally great determinants of the success or failure of entirely all organizations (Becker, 2001). In any cas e, a supportive economic environment is the best condition an organization may imagine. Most multinationals today operate in entirely different economic systems from their home countries and are as such usually compelled to adapt to the conditionality in existence. In many countries, governments in place have tried to promote investment activities though the creation of favorable economic environments that support the operations of investors. The economic systems in many countries differ in many respects and this has a great influence on investment viability. The economic systems in the Eastern countries are totally different from the systems in the Western economies.